Release Release Release

5-401. Pretrial release.
(2017) Page 1 of 8
5-401. Pretrial release .

A. Hearing.
(1) Time. If a case is initiated in the district court, and the conditions of release have
not been set by the magistrate or metropolitan court, the district court shall conduct a hearing
under this rule and issue an order setting the conditions of release as soon as practicable, but in
no event later than
(a) if the defendant remains in custody, three (3) days after the date of arrest if the
defendant is being held in the local detention center, or five (5) days after the date of arrest if the
defendant is not being held in the local detention center; or
(b) arraignment, if the defendant is not in custody.
(2) Right to counsel. If the defendant does not have counsel at the initial release
conditions hearing and is not ordered released at the hearing, the matter shall be continued for no
longer than three (3) additional days for a further hearing to review conditions of release , at
which the defendant shall have the right to assistance of retained or appointed counsel.
B. Right to pretrial release ; recognizance or unsecured appearance bond . Pending
trial, any defendant eligible for pretrial release under Article II, Section 13 of the New Mexico
Constitution, shall be ordered released pending trial on the defendant’s personal recognizance or
upon the execution of an unsecured appearance bond in an amount set by the court, unless the
court makes written findings of particularized reasons why the release will not reasonably ensure
the appearance of the defendant as required. The court may impose non-monetary conditions of
release under Paragraph D of this rule, but the court shall impose the least restrictive condition
or combination of conditions that will reasonably ensure the appearance of the defendant as
required and the safety of any other person or the community.
C. Factors to be considered in determining conditions of release . In determining the
least restrictive conditions of release that will reasonably ensure the appearance of the defendant
as required and the safety of any other person and the community, the court shall consider any
available results of a pretrial risk assessment instrument approved by the Supreme Court for use
in the jurisdiction, if any, and the financial resources of the defendant. In addition, the court may
take into account the available information concerning
(1) the nature and circumstances of the offense charged, including whether the offense is
a crime of violence or involves alcohol or drugs;
(2) the weight of the evidence against the defendant;
(3) the history and characteristics of the defendant, including
(a) the defendant’s character, physical and mental condition, family ties,
employment, past and present residences, length of residence in the community, community ties,
past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning
appearance at court proceedings; and
(b) whether, at the time of the current offense or arrest, the defendant was on
probation, on parole, or on other release pending trial, sentencing, or appeal for any offense
under federal, state, or local law;
(4) the nature and seriousness of the danger to any person or the community that would
be posed by the defendant’s release ;
(5) any other facts tending to indicate the defendant may or may not be likely to appear
as required; and
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5-401. Pretrial release. (2017) Page 2 of 8
(6) any other facts tending to indicate the defendant may or may not commit new crimes
if released.
D. Non-monetary conditions of release . In its order setting conditions of release , the
court shall impose a standard condition that the defendant not commit a federal, state, or local
crime during the period of release . The court may also impose the least restrictive particularized
condition, or combination of particularized conditions, that the court finds will reasonably ensure
the appearance of the defendant as required, the safety of any other person and the community,
and the orderly administration of justice, which may include the condition that the defendant
(1) remain in the custody of a designated person who agrees to assume supervision and
to report any violation of a release condition to the court, if the designated person is able
reasonably to assure the court that the defendant will appear as required and will not pose a
danger to the safety of any other person or the community;
(2) maintain employment, or, if unemployed, actively seek employment;
(3) maintain or commence an educational program;
(4) abide by specified restrictions on personal associations, place of abode, or travel;
(5) avoid all contact with an alleged victim of the crime or with a potential witness who
may testify concerning the offense;
(6) report on a regular basis to a designated pretrial services agency or other agency
agreeing to supervise the defendant;
(7) comply with a specified curfew;
(8) refrain from possessing a firearm, destructive device, or other dangerous weapon;
(9) refrain from any use of alcohol or any use of an illegal drug or other controlled
substance without a prescription by a licensed medical practitioner;
(10) undergo available medical, psychological, or psychiatric treatment, including
treatment for drug or alcohol dependency, and remain in a specified institution if required for
that purpose;
(11) submit to a drug test or an alcohol test on request of a person designated by the
court;
(12) return to custody for specified hours following release for employment, schooling,
or other limited purposes;
(13) satisfy any other condition that is reasonably necessary to ensure the appearance of
the defendant as required and the safety of any other person and the community.
E. Secured bond . If the court makes findings of the reasons why release on personal
recognizance or unsecured appearance bond , in addition to any non-monetary conditions of
release , will not reasonably ensure the appearance of the defendant as required, the court may
require a secured bond for the defendant’s release .
(1) Factors to be considered in setting secured bond .
(a) In determining whether any secured bond is necessary, the court may consider
any facts tending to indicate that the particular defendant may or may not be likely to appear as
required.
(b) The court shall set secured bond at the lowest amount necessary to reasonably
ensure the defendant’s appearance and with regard to the defendant’s financial ability to secure a
bond .
(c) The court shall not set a secured bond that a defendant cannot afford for the
purpose of detaining a defendant who is otherwise eligible for pretrial release .
(d) Secured bond shall not be set by reference to a predetermined schedule of
monetary amounts fixed according to the nature of the charge.
(2) Types of secured bond . If a secured bond is determined necessary in a particular
case, the court shall impose the first of the following types of secured bond that will reasonably
ensure the appearance of the defendant.
(a) Percentage bond . The court may require a secured appearance bond executed
by the defendant in the full amount specified in the order setting conditions of release , secured
by a deposit in cash of ten percent (10%) of the amount specified. The deposit may be returned
as provided in Paragraph M of this rule.
(b) Property bond . The court may require the execution of a property bond by the
defendant or by unpaid sureties in the full amount specified in the order setting conditions of
release , secured by the pledging of real property in accordance with Rule 5-401.1 NMRA.
(c) Cash or surety bond . The court may give the defendant the option of either
(i) a secured appearance bond executed by the defendant in the full amount
specified in the order setting conditions of release , secured by a deposit in cash of one hundred
percent (100%) of the amount specified, which may be returned as provided in Paragraph M of
this rule, or
(ii) a surety bond executed by licensed sureties in accordance with Rule 5-401.2
NMRA for one hundred percent (100%) of the full amount specified in the order setting
conditions of release .
F. Order setting conditions of release ; findings regarding secured bond .
(1) Contents of order setting conditions of release . The order setting conditions of
release shall
(a) include a written statement that sets forth all the conditions to which the release
is subject, in a manner sufficiently clear and specific to serve as a guide for the defendant’s
conduct; and
(b)advise the defendant of
(i) the penalties for violating a condition of release , including the penalties for
committing an offense while on pretrial release ;
(ii) the consequences for violating a condition of release , including the
immediate issuance of a warrant for the defendant’s arrest, revocation of pretrial release , and
forfeiture of bond ; and
(iii) the consequences of intimidating a witness, victim, or informant or
otherwise obstructing justice
(2) Written findings regarding secured bond . The court shall file written findings of
the individualized facts justifying the secured bond , if any, as soon as possible, but no later than
two (2) days after the conclusion of the hearing.
G. Pretrial detention. If the prosecutor files a motion for pretrial detention, the court shall
follow the procedures set forth in Rule 5-409 NMRA.
H. Case pending in district court; motion for review of conditions of release .
(1) Motion for review. If the district court requires a secured bond for the defendant’s
release under Paragraph E of this rule or imposes non-monetary conditions of release under
Paragraph D of this rule, and the defendant remains in custody twenty-four (24) hours after the
issuance of the order setting conditions of release as a result of the defendant’s inability to post
the secured bond or meet the conditions of release in the present case, the defendant shall, on
motion of the defendant or the court’s own motion, be entitled to a hearing to review the
(2) Review hearing. The district court shall hold a hearing in an expedited manner, but
in no event later than five (5) days after the filing of the motion. The defendant shall have the
right to assistance of retained or appointed counsel at the hearing. Unless the order setting
conditions of release is amended and the defendant is thereupon released, the court shall state in
the record the reasons for declining to amend the order setting conditions of release . The court
shall consider the defendant’s financial ability to secure a bond . No defendant eligible for
pretrial release under Article II, Section 13 of the New Mexico Constitution shall be detained
solely because of financial inability to post a secured bond unless the court determines by clear
and convincing evidence and makes findings of the reasons why the amount of secured bond
required by the court is reasonably necessary to ensure the appearance of the particular defendant
as required. The court shall file written findings of the individualized facts justifying the secured
bond as soon as possible, but no later than two (2) days after the conclusion of the hearing.
(3) Work or school release . A defendant who is ordered released on a condition that
requires that the defendant return to custody after specified hours shall, on motion of the
defendant or the court’s own motion, be entitled to a hearing to review the conditions imposed.
Unless the requirement is removed and the defendant is released on another condition, the court
shall state in the record the reason for the continuation of the requirement. A hearing to review
conditions of release under this subparagraph shall be held by the district court within five (5)
days of the filing of the motion. The defendant shall have the right to assistance of retained or
appointed counsel at the hearing.
(4) Subsequent motion for review. The defendant may file subsequent motions for
review of the order setting conditions of release , but the court may rule on subsequent motions
with or without a hearing.
I. Amendment of conditions. The court may amend its order setting conditions of release
at any time. If the amendment of the order may result in the detention of the defendant or in more
restrictive conditions of release , the court shall not amend the order without a hearing. If the
court is considering revocation of the defendant’s pretrial release or modification of the
defendant’s conditions of release for violating the a condition of release , the court shall follow
the procedures set forth in Rule 5-403 NMRA.
J. Record of hearing. A record shall be made of any hearing held by the district court
under this rule.
K. Cases pending in magistrate, metropolitan, or municipal court; petition for release
or review by district court.
(1) Case within magistrate, metropolitan, or municipal court trial jurisdiction. A
defendant charged with an offense that is within magistrate, metropolitan, or municipal court
trial jurisdiction may file a petition in the district court for review of the magistrate,
metropolitan, or municipal court’s order setting conditions of release only after the magistrate,
metropolitan, or municipal court has ruled on a motion to review the conditions of release under
Rule 6-401(H) NMRA, Rule 7-401(H) NMRA, or Rule 8-401(G) NMRA. The defendant shall
attach to the district court petition a copy of the magistrate, metropolitan, or municipal court
order disposing of the defendant’s motion for review.
(2) Felony case. A defendant charged with a felony offense who has not been bound
over to the district court may file a petition in the district court for release under this rule at any
time after the defendant’s arrest.
(3) Petition; requirements. A petition under this paragraph shall include the specific
facts that warrant review by the district court and may include a request for a hearing. The
petitioner shall promptly
(a) file a copy of the district court petition in the magistrate, metropolitan, or
municipal court;
(b) serve a copy on the district attorney; and
(c) provide a copy to the assigned district court judge.
(4) Magistrate, metropolitan, or municipal court’s jurisdiction pending determination
of the petition. Upon the filing of a petition under this paragraph, the magistrate, metropolitan,
or municipal court’s jurisdiction to set or amend the conditions of release shall be suspended
pending determination of the petition by the district court. The magistrate, metropolitan, or
municipal court shall retain jurisdiction over all other aspects of the case, and the case shall
proceed in the magistrate, metropolitan, or municipal court while the district court petition is
pending. The magistrate, metropolitan, or municipal court’s order setting conditions of release ,
if any, shall remain in effect unless and until the district court issues an order amending the
(5) District court review. The district court shall rule on the petition in an expedited
manner. Within three (3) days after the petition is filed, the district court shall take one of the
following actions:
(a) set a hearing no later than ten (10) days after the filing of the petition and
promptly transmit a copy of the notice to the magistrate, metropolitan, or municipal court;
(b) deny the petition summarily; or
(c) amend the order setting conditions of release without a hearing.
(6) District court order; transmission to magistrate, metropolitan, or municipal court.
The district court shall promptly transmit to the magistrate, metropolitan, or municipal court a
copy of the district court order disposing of the petition, and jurisdiction over the conditions of
release shall revert to the magistrate, metropolitan, or municipal court.
L. Expedited trial scheduling for defendant in custody. The district court shall provide
expedited priority scheduling in a case in which the defendant is detained as a result of inability
to post a secured bond or meet the conditions of release .
M. Return of cash deposit. If a defendant has been released by executing a secured
appearance bond and depositing a cash deposit under Paragraph E of this rule, when the
conditions of the appearance bond have been performed and the defendant’s case has been
adjudicated by the court, the clerk shall return the sum that has been deposited to the person who
deposited the sum, or that person’s personal representatives or assigns.
N. Release from custody by designee. The chief judge of the district court may designate
by written court order responsible persons to implement the pretrial release procedures set forth
in Rule 5-408 NMRA. A designee shall release a defendant from custody prior to the
defendant’s first appearance before a judge if the defendant is eligible for pretrial release under
Rule 5-408 NMRA, but may contact a judge for special consideration based on exceptional
circumstances. No person shall be qualified to serve as a designee if the person or the person’s
spouse is related within the second degree of blood or marriage to a paid surety who is licensed
to sell property or corporate bonds within this state.
O. Bind over to district court. For any case that is not within magistrate or metropolitan
court trial jurisdiction, upon notice to that court, any bond shall be transferred to the district
court upon the filing of an information or indictment in the district court.
P. Evidence. Information offered in connection with or stated in any proceeding held or
order entered under this rule need not conform to the New Mexico Rules of Evidence.
Q. Forms. Instruments required by this rule, including any order setting conditions of
release , appearance bond , property bond , or surety bond , shall be substantially in the form
approved by the Supreme Court.
R. Judicial discretion; disqualification and excusal. Action by any court on any matter
relating to pretrial release shall not preclude the subsequent statutory disqualification of a judge.
A judge may not be excused from setting initial conditions of release or reviewing a lower
court’s order setting or revoking conditions of release unless the judge is required to recuse
under the provisions of the New Mexico Constitution or the Code of Judicial Conduct.
[As amended, effective January 1, 1987; October 1, 1987; September 1, 1990; December 1,
1990; September 1, 2005; as amended by Supreme Court Order No. 07-8300-029, effective
December 10, 2007; by Supreme Court Order No. 10-8300-033, effective December 10, 2010; as
amended by Supreme Court Order No. 14-8300-017, effective for all cases pending or filed on or
after December 31, 2014; as amended by Supreme Court Order No. 17-8300-005, effective for
all cases pending or filed on or after July 1, 2017.]
Committee commentary. — This rule provides “the mechanism through which a person may
effectuate the right to pretrial release afforded by Article II, Section 13 of the New Mexico Constitution.”
State v. Brown, 2014-NMSC-038, ¶ 37, 338 P.3d 1276. In 2016, Article II, Section 13 was amended (1) to
permit a court of record to order the detention of a felony defendant pending trial if the prosecutor proves
by clear and convincing evidence that the defendant poses a danger to the safety of any other person or
the community and that no release condition or combination of conditions will reasonably ensure the
safety of any other person or the community; and (2) to require the pretrial release of a defendant who is
in custody solely due to financial inability to post a secured bond . This rule was derived from the federal
statute governing the release or detention of a defendant pending trial. See 18 U.S.C. § 3142.
This rule was amended in 2017 to implement the 2016 amendment to Article II, Section 13 and the
Supreme Court’s holding in Brown, 2014-NMSC-038. Corresponding rules are located in the Rules of
Criminal Procedure for the Magistrate Courts, see Rules 6-401 NMRA, the Rules of Criminal Procedure
for the Metropolitan Courts, see Rule 7-401 NMRA, and the Rules of Procedure for the Municipal Courts,
see Rule 8-401 NMRA.
Time periods specified in this rule are computed in accordance with Rule 5-104 NMRA.
Just as assistance of counsel is required at a detention hearing under Rule 5-409 NMRA that may
result in a denial of pretrial release based on dangerousness, Subparagraphs (A)(2), (H)(2), and (H)(3) of
this rule provide that assistance of counsel is required in a proceeding that may result in denial of pretrial
release based on reasons that do not involve dangerousness, such as a simple inability to meet a
financial condition.
As set forth in Paragraph B, a defendant is entitled to release on personal recognizance or

unsecured bond unless the court determines that such release , in addition to any non-monetary
conditions of release under Paragraph D, will not reasonably ensure the appearance of the defendant
and the safety of any other person or the community.
Paragraph C lists the factors the court should consider when determining conditions of release . In all
cases, the court is required to consider any available results of a pretrial risk assessment instrument
approved by the Supreme Court for use in the jurisdiction, if any, and the financial resources of the
defendant.
Paragraph D lists various non-monetary conditions of release . The court must impose the least
restrictive condition, or combination of conditions, that will reasonably ensure the appearance of the
defendant as required and the safety of any other person and the community. See Brown, 2014-NMSC-
038, ¶¶ 1, 37, 39. If the defendant has previously been released on standard conditions prior to a court
appearance, the judge should review the conditions at the defendant’s first appearance to determine
whether any particularized conditions should be imposed under the circumstances of the case. Paragraph
D also permits the court to impose non-monetary conditions of release to ensure the orderly
administration of justice. This provision was derived from the American Bar Association, ABA Standards
for Criminal Justice: Pretrial Release , Standard 10-5.2 (3d ed. 2007). Some conditions of release may
have a cost associated with the condition. The court should make a determination as to whether the
defendant can afford to pay all or a portion of the cost, or whether the court has the authority to waive the
cost, because detaining a defendant due to inability to pay the cost associated with a condition of release
is comparable to detaining a defendant due to financial inability to post a secured bond .
As set forth in Paragraph E, the only purpose for which the court may impose a secured bond is to
ensure that the defendant will appear for trial and other pretrial proceedings for which the defendant must
be present. See State v. Ericksons, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746 P.2d 1099 (“[T]he purpose
of bail is to secure the defendant’s attendance to submit to the punishment to be imposed by the court.”);
see also NMSA 1978, § 31-3-2(B)(2) (authorizing the forfeiture of bond upon the defendant’s failure to
appear).
The 2017 amendments to this rule clarify that the amount of secured bond must not be based on a
bond schedule, i.e., a predetermined schedule of monetary amounts fixed according to the nature of the
charge. Instead, the court must consider the individual defendant’s financial resources and must set
secured bond at the lowest amount that will reasonably ensure the defendant’s appearance in court after
the defendant is released.
Secured bond cannot be used for the purpose of detaining a defendant who may pose a danger to
the safety of any other person or the community. See Brown, 2014-NMSC-038, ¶ 53 (“Neither the New
Mexico Constitution nor our rules of criminal procedure permit a judge to set high bail for the purpose of
preventing a defendant’s pretrial release .”); see also Stack v. Boyle, 342 U.S. 1, 5 (1951) (stating that
secured bond set higher than the amount reasonably calculated to ensure the defendant’s appearance in
court “is ‘excessive’ under the Eighth Amendment”). A felony defendant who poses a danger that cannot
be mitigated through the imposition of non-monetary conditions of release under Paragraph D of this rule
should be detained under Article II, Section 13 and Rule 5-409 NMRA.
The court should consider the authorized types of secured bonds in the order of priority set forth in
Paragraph E.
The court must first consider requiring an appearance bond secured by a cash deposit of 10%. If this
is inadequate, the court then must consider a property bond where the property belongs to the defendant
or other unpaid surety. If neither of these options is sufficient to reasonably ensure the defendant’s
appearance, the court may require a cash or surety bond for the defendant’s release . If the court
requires a cash or surety bond , the defendant has the option either to execute an appearance bond and
deposit 100% of the amount of the bond with the court or to purchase a bond from a paid surety. A paid
surety may execute a surety bond or a real or personal property bond only if the conditions of Rule Rule
5-401.2 NMRA are met.
Paragraph F governs the contents of an order setting conditions of release . See Form 9-303 NMRA
(order setting conditions of release ). Paragraph F also requires the court to make written findings
justifying the imposition of a secured bond , if any. Judges are encouraged to enter their written findings
on the order setting conditions of release at the conclusion of the hearing. If more detailed findings are
necessary, the judge should make such supplemental findings in a separate document within two days of
the conclusion of the hearing.
Paragraph G addresses pretrial detention of a dangerous defendant under Article II, Section 13. If the
defendant poses a danger to the safety of any other person or the community that cannot be addressed
through the imposition of non-monetary conditions of release , the prosecutor may file a motion for
pretrial detention. If the prosecutor files a motion for pretrial detention, the district court must follow the
procedures set forth in Rule 5-409 NMRA.
Paragraphs H and K provide avenues for a defendant to seek district court review of the conditions of
release . Paragraph H applies to a defendant whose case is pending before the district court. Paragraph
K sets forth the procedure for a defendant whose case is pending in the magistrate, metropolitan, or
municipal court. Article II, Section 13 requires the court to rule on a motion or a petition for pretrial
release “in an expedited manner” and to release a defendant who is being held solely due to financial
inability to post a secured bond . A defendant who wishes to present financial information to a court to
support a motion or petition for pretrial release may present Form 9-301A NMRA (pretrial release
financial affidavit) to the court. The defendant shall be entitled to appear and participate personally with
counsel before the judge conducting any hearing to review the conditions of release , rather than by any
means of remote electronic conferencing.
Paragraph L requires the district court to prioritize the scheduling of trial and other proceedings for
cases in which the defendant is held in custody due to inability to post bond or meet the conditions of
release . See generally United States v. Salerno, 481 U.S. 739, 747 (1987) (concluding that the detention
provisions in the Bail Reform Act, 18 U.S.C. § 3142, did not violate due process, in part due to “the
stringent time limitations of the Speedy Trial Act, 18 U.S.C. § 3161”); Am. Bar Ass’n, ABA Standards for
Criminal Justice: Pretrial Release , Standard 10-5.11 (3d ed. 2007) (“Every jurisdiction should establish,
by statute or court rule, accelerated time limitations within which detained defendants should be tried
consistent with the sound administration of justice.”).
Under NMSA 1978, Section 31-3-1, the court may appoint a designee to carry out the provisions of
this rule. As set forth in Paragraph N, a designee must be designated by the chief district court judge in a
written court order. A person may not be appointed as a designee if such person is related within the
second degree of blood or marriage to a paid surety licensed in this state to execute bail bonds. A jailer
may be appointed as a designee. Paragraph N and Rule 5-408 NMRA govern the limited circumstances
under which a designee shall release an arrested defendant from custody prior to that defendant’s first
appearance before a judge.
Paragraph O requires the magistrate or metropolitan court to transfer any bond to the district court
upon notice from the district attorney that an information or indictment has been filed. See Rules 6-202(E)
-(F), 7-202(E)-(F) NMRA (requiring the district attorney to notify the magistrate or metropolitan court of the
filing of an information or indictment in the district court).
Paragraph P of this rule dovetails with Rule 11-1101(D)(3)(e) NMRA. Both provide that the Rules of
Evidence are not applicable to proceedings in district court with respect to matters of pretrial release .
Like other types of proceedings where the Rules of Evidence do not apply, at a pretrial release hearing
the court is responsible “for assessing the reliability and accuracy” of the information presented. See
United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986) (explaining that in a pretrial detention hearing
the judge “retains the responsibility for assessing the reliability and accuracy of the government’s
information, whether presented by proffer or by direct proof”); see also United States v. Marshall, 519 F.
Supp. 751, 754 (E.D. Wis. 1981) (“So long as the information which the sentencing judge considers has
sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into
account in passing sentence.”), aff’d 719 F.2d 887 (7th Cir.1983); State v. Guthrie, 2011-NMSC-014, ¶¶
36-39, 43, 150 N.M. 84, 257 P.3d 904 (explaining that in a probation revocation hearing, the court should
focus on the reliability of the evidence).
Consistent with Rule 5-106 NMRA, a party cannot exercise the statutory right to excuse a judge who
is setting initial conditions of release . See NMSA 1978, § 38-3-9. Paragraph R of this rule does not
prevent a judge from being recused under the provisions of the New Mexico Constitution or the Code of
Judicial Conduct either on the court’s own motion or motion of a party. See N.M. Const. art. VI, § 18; Rule
21-211 NMRA.
[As amended by Supreme Court Order No. 07-8300-029, effective December 10, 2007; as amended
by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1,
2017.]

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5-401. Pretrial release.

5-401. Pretrial release .

As set forth in Paragraph B, a defendant is entitled to release on personal recognizance or

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